Supreme Court
New South Wales
Medium Neutral Citation: Ljiljana Coshott v Stephen Michael Barry [2017] NSWSC 1220 Hearing dates: 5 September 2017 Date of orders: 05 September 2017 Decision date: 05 September 2017 Jurisdiction: Common Law Before: Fagan J Decision: Dismiss the applicant’s further amended summons.
The applicant is to pay the costs of the first and second respondent.Catchwords: COSTS – costs assessment – costs ordered by court or tribunal – jurisdiction of costs assessor – whether costs assessor undertook construction of court’s order and thus exceeded jurisdiction
ADMINISTRATIVE LAW – judicial review – discretion to refuse relief – where alternative review procedures provided for by statuteLegislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2010 (NSW)
Legal Profession Regulation 2005 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Boral Gas NSW (Pty Ltd) v Magill (1993) 32 NSWLR 501
Coshott v Barry [2015] NSWCA 257
Wende v Horwath NSW Pty Ltd [2014] NSWCA 170
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 487
NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1319Category: Principal judgment Parties: Ljiljana Coshott (applicant)
Stephen Michael Barry (first respondent)
Martin Pearce Board (second respondent)Representation: Counsel:
Solicitors:
Mr Oliver Jones (applicant)
Ms Michelle Castle (respondent)
Comino Prassas (applicant)
CKB Associates Lawyers
File Number(s): 2016/239683
Judgment
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These proceedings were commenced by summons filed 9 August 2016. By further amended summons filed 28 September 2016 the applicant Ms Coshott seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a determination of a costs assessor with respect to her costs under two orders of the Court of Appeal made 28 August 2015.
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The first and second respondents to the summons, Messrs Barry and Board, are the parties against whom the costs orders were made. The third respondent, Mr Wall is the assessor to whom assessments under the cost orders were referred. The fourth respondent is the Manager, Costs Assessment (to whom I will hereafter refer as “the Manager”) who pursuant to the applicable legislation referred the assessments to Mr Wall.
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The further amended summons seeks a number of orders and alternative orders on grounds which include that the Manager erred in referring the assessments under both of the Court of Appeal's orders to the one assessor. Written submissions were filed in support of the further amended summons on 9 December 2016 elaborating the grounds. However, at the commencement of the hearing, counsel for the applicant narrowed her case to a claim for only the following order:
2(b)(i) an order that the rulings in [the two costs assessments referred to Mr Wall] be set aside.
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Counsel particularised that “the rulings” referred to in this claim for relief is an expression intended to refer to a certificate of determination in one of the assessments, which the assessor delivered to the Manager on 12 August 2016.
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- Case
- [2017] NSWSC 1220
- Decision Date
CaseChat Overview and Summary
The court found that the costs assessor had indeed undertaken a construction of the court’s order, which went beyond their jurisdiction. The court held that the assessor should have strictly followed the explicit terms of the court's order without introducing any new interpretations. In terms of the judicial review, the court examined whether the alternative review procedures provided by statute had been followed and whether the discretion to refuse relief was appropriately exercised. The court concluded that the administrative decision was subject to judicial review and that the discretion to refuse relief was correctly applied, given the statutory provisions.
In light of the findings, the court ordered that the costs previously assessed by the costs assessor be reconsidered in accordance with the court's original order. No new constructions of the order were to be made by the assessor, and the matter was to be remitted for proper cost assessment. The court further confirmed that the administrative decision was indeed subject to judicial review, but upheld the exercise of discretion to refuse relief as provided for by statute. These conclusions led to the final orders of the court, which were communicated to the parties involved.
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